Today’s question is a new one. My correspondent is

… wondering about the legalities of using lock picks as a paramedic to gain entry to patients houses? Obviously if it’s time critical you’d break in more quickly, but for someone who you know just needs an assist lift, for example, shouldn’t need to replace a door or window that gets broken if there are other options. I’ve been able to find out about the laws around carrying them and needing to have a legal justification (just purchased, on the way to a competition etc) but not about the use outside of competitions or being a locksmith. Thank you!

I’ll take it as a given that we accept paramedics and others can force entry to a house to assist a person where that is reasonable in all the circumstances – see The doctrine of necessity – Explained (January 31, 2017).

An online book on the laws of lockpicking (https://www.pickpals.com.au/wp-content/uploads/2018/08/pickpals-ebook.pdf) says:

There is no federal (Australia wide) law that sets out the situations in which it may be illegal to possess and use lock picking tools. The relevant law varies from state to state

They then proceed to outline the law in each state. My correspondent does not identify their state, so I’ll assume it’s NSW. The PickPals book says

In the state of New South Wales, a person may be found guilty of an offence if they have in their possession, without a lawful excuse, any tool that is capable of being used to break into a premises, vehicle or a safe (section 114(1)(b) of the Crimes Act 1900 (NSW)). The offence is one of ‘strict liability’ which means that a person in possession of such tools does not have to have an intention to break into a premises, vehicle or safe. The fact that the tools are in the person’s possession without a lawful excuse is sufficient and constitutes an infringement of the law.

Section 114(1)(b) of the Crimes Act 1900 (NSW) says:

(1) Any person who–

(a)        …

(b)       has in his or her possession, without lawful excuse, any implement of housebreaking or safebreaking, or any implement capable of being used to enter or drive or enter and drive a conveyance,

(c)        …

(d)       …

shall be liable to imprisonment for seven years.

(It should be noted that the defence requires a ‘lawful excuse’ not a ‘reasonable excuse’ (compare that to the Summary Offences Act 1988 (NSW) s 11C which makes it an offence to be in possession of a knife in a public place without ‘reasonable excuse’. That section also lists some things that constitute a ‘reasonable excuse’ including ‘the lawful pursuit of the person’s occupation, education or training’ and ‘participation in a lawful entertainment, recreation or sport’.  There is no such list in the Crimes Act relating to lock picks.)

I think there would be no doubt that being a licenced locksmith (Security Industry Act 1997 (NSW) s 12(1)(c)) would be a ‘lawful excuse’.

I can find three NSW cases ‘lock pick’ has been used (R v Salameh [2016] NSWSC 930; See v R [2017] NSWCCA 165 and Wilson v Commissioner of Police [2018] NSWCATAD 274). Salameh’s case and See’s case are not about lawful excuse and are of no assistance. Wilson was an appeal against a firearms prohibition order. The details are not important save that at one point Mr Wilson had been charged with being in possession of a lock pick. At [18] The Tribunal said:

The Magistrate found … that the Applicant he had been in possession of the lock-picking equipment for some time, had used the equipment in his previous employment and had developed an interest, and practised at home. It was also accepted that the Applicant had used the lock-picks on the fox trap which he had set earlier. As a result, the Magistrate found that the Applicant had established a lawful basis for being in possession of the lock-picking equipment and dismissed the charge in relation to housebreaking equipment.

Now there is no law that says ‘lock picks’ may be lawfully used because you have an interest or set fox traps, nor is there a law that says you cannot use them. The real question is not ‘is there a law’ but is the court satisfied that whatever use you intend to make of them, that is lawful?

At the end of the day whether a person has a lawful excuse depends on the arguments. The police find you in possession of the lock picks and ask ‘why are you carrying these?’ You answer, ‘I’m a paramedic and use them to gain entry when required as it does less damage than breaking in’ and you produce your ID to prove that indeed you are a paramedic. We take it as read that forcing entry is at times lawful.  The police may accept that.  If they don’t they issue an infringement notice and put the matter before the court.  You appear before the Magistrate and make the same argument.  The Magistrate will either accept it or not. If the Magistrate does not you are convicted, so then you appeal to the Supreme Court and then to the Court of Criminal Appeal and then we get a precedent on whether or not that constitutes a ‘lawful excuse’.

Conclusion

One cannot say definitively but my view would be that given that paramedics at times do have to force entry into a home, having equipment to do that – ie to do something you may lawful do – would constitute a ‘lawful excuse’ for s 114(1)(b) of the Crimes Act. But you will never find that written down and it does not appear the question has been asked at NSW Supreme Court level. So you carry the items and if push comes to shove you hope the police agree with that this is a ‘lawful excuse’.